GALVIN v. ELI LILLY AND CO.

September 12, 2005.

PAULA J. GALVIN, Plaintiff,
v.
ELI LILLY AND CO., Defendant.

The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

On June 10, 2005, the Court granted Defendant Eli Lilly's
Motion for Summary Judgment in this case. Subsequently, Plaintiff
Paula Galvin filed a Motion to Alter or Amend Judgment, in
accordance with Federal Rule of Civil Procedure 59(e). After
careful consideration of Plaintiff's motion, the parties' briefs
and supporting documentation, as well as the relevant law, the
Court finds that its original ruling shall remain unchanged.
Accordingly, the Court shall deny Plaintiff's motion.

I. BACKGROUND

Plaintiff alleges that she was exposed to diethylstilbestrol
while in utero in 1964 and 1965, which resulted in injuries to
Plaintiff, including infertility. Defendant originally moved for
summary judgment in this case, arguing that Plaintiff could not
demonstrate that Defendant's DES product caused her injuries.
See generally Galvin v. Eli Lilly, No. 03-1797 (D.D.C. June 10,
2005). Plaintiff has filed the instant Motion to Alter or Amend
Judgment, disputing several of the Court's findings with respect
to Plaintiff's evidence. Specifically, Plaintiff asserts that the
Court should have credited Plaintiff's affidavits of Plaintiff's
mother, Elizabeth Keller, and the pharmacist, Bill Waltrip. See Pl.'s Mot. at 1-3. Plaintiff
further argues that the Court was mistaken in its finding that a
generic Marsh-Parker version of DES matching Mrs. Keller's
description of a white cross-scored pill could have been
dispensed to Plaintiff's mother. See id. at 3-8.

II. LEGAL STANDARD

Pursuant to the Federal Rules of Civil Procedure, a party may
petition a district court to alter or amend a judgment no later
than ten days after the entry thereof. Fed.R.Civ.P. 59(e).
Motions brought pursuant to Rule 59(e) "are disfavored and relief
from judgment is granted only when the moving party establishes
extraordinary circumstances." Niedermeier v. Office of Max
Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 1991). Such motions will
be denied unless the district court finds "that there is an
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice." Firestone v. Firestone, 76 F.2d 1205, 1208
(D.C. Cir. 1996) (internal quotations omitted); see also Mekuria
v. Washington Metropolitan Area Transit Authority,
45 F. Supp. 2d 19, 31 n. 10 (D.D.C. 1999). A motion to alter or amend a
judgment pursuant to Federal Rule of Civil Procedure 59(e) "is
not simply an opportunity to reargue facts and theories upon
which a court has already ruled." New York v. United States,
880 F. Supp. 37, 38 (D.D.C. 1995) (three-judge panel) (per
curiam); see also Harvey v. District of Columbia,
949 F. Supp. 878, 879 (D.D.C. 1996) (holding that a motion to reconsider
pursuant to Rule 59(e) "is not routinely granted").

Even more so, a motion to reconsider is not "a means to bring
the Court theories or arguments that could have been advanced
earlier." W.C. & A.N. Miller Cos. v. United States,
173 F.R.D. 1, 3 (D.D.C. 1997); see also Kattan v. District of Columbia,
995 F.2d 274, 276 (D.C. Cir. 1993) ("[T]his Court has recognized that a losing party may not
use a Rule 59 motion to raise new issues that could have been
raised previously."); Savers Fed. Sav. & Loan Ass'n v. Reetz,
888 F.2d 1497, 1508-09 (5th Cir. 1989) (finding no abuse of
discretion in denying a Rule 59(e) motion that sought to raise
new theories where facts were known to the movant in advance of
summary judgment); Natural Resources Def. Council, Inc. v.
United States Envt'l Protection Agency, 705 F. Supp. 698, 701
(D.D.C. 1989) ("Rule 59(e) motions are not vehicles for bringing
before the court theories or arguments that were not advanced
earlier."), vacated on other grounds, 707 F. Supp. 3 (D.D.C.
1989); Harvey, 949 F. Supp. at 879 (same). Instead, a district
court properly exercises its discretion under Rule 59(e) to alter
or amend its judgment where "the moving party presents new facts
or a clear error of law which compel a change in the court's
ruling." New York, 880 F. Supp. at 39; see also Assassination
Archives and Research Ctr. v. United States Dep't of Justice,
828 F. Supp. 100, 102 (D.D.C. 1993). In considering the propriety
of a Rule 59(e) motion, the Court possesses sufficient discretion
to prevent injustice or unfairness.

III. DISCUSSION

The Court will address each of Plaintiff's arguments in turn.
Plaintiff first argues that the Court improperly failed to
consider Mrs. Keller's affidavit offered to supplement her
deposition testimony. The Court declined to consider this
affidavit, in which Mrs. Keller altered her earlier deposition
testimony, because her affidavit and the statements it contained
were not provided to Defendant during discovery, but were instead
supplied in response to Defendant's arguments made in Defendant's motion for summary judgment.*fn1
Galvin, No. 03-1797 at 2-3. The Court viewed Mrs. Keller's
additional affidavit as an attempt to "recharacterize and modify
to her advantage statements made in the course of depositions
after Defendant has relied on those depositions in drafting a
dispositive motion." Id. at 3. Plaintiff argues that Mrs.
Keller's supplemental affidavit was not contradictory, and should
have been admitted. The Court finds that its decision to exclude
this evidence was proper; the supplemental affidavit
fundamentally changes the nature of Mrs. Keller's earlier
deposition testimony. More importantly, however, Plaintiff
overlooks the fact that the Court found that the ultimate result
would be the same whether it considered Mrs. Keller's additional
statements or not. See Galvin, 03-1797 at 10 ("Even if the
Court considers Plaintiff's post hoc statement by Mrs. Keller
that the pill she took had no additional markings other than a
cross-score, Plaintiff has not disputed that the Marsh-Parker
pill fits the description of the pill taken by Mrs. Keller during
her pregnancy with Plaintiff.").

Second, Plaintiff argues that the Court should not have
excluded the supplemental affidavit offered by the pharmacist
Bill Waltrip.*fn2 Plaintiff suggests that his supplemental
statements did not contradict his earlier affidavit, and that the
supplemental statements were offered in response to issues raised "for the first time" by
Defendant in the motion for summary judgment. Pl.'s Mot. at 2.
Plaintiff argues that Waltrip's statement is a reliable indicator
of the pharmacy's prior practices because "[t]his is not a movie
theater where the bill of fare changes weekly." Id. The Court
originally rejected the supplemental affidavit as a "post hoc
recalibration" of Plaintiff's evidence, noting Plaintiff had
failed to present Waltrip's statements to Defendant during
discovery. Galvin, 03-1797 at 2-3. Plaintiff's movie theater
comparison notwithstanding, the Court finds that its earlier
ruling was correct. Plaintiff cannot receive Defendant's motion
for summary judgment and then go in search of new evidence with
which to attack Defendant's arguments. This contradicts the very
notion of a discovery process in which the parties marshal their
evidence and disclose it to the other side before making
arguments based on the available evidence. Plaintiff has
attempted to deny Defendant the opportunity to inquire during
discovery concerning Waltrip's familiarity with his employer's
practices in the years before he was even licensed as a
pharmacist.

Next Plaintiff suggests that the Court did not properly
consider evidence that the pharmacy from which Mrs. Keller
purchased her prescription received its drugs from a wholesaler
that "was required to supply Lilly's DES exclusively in all
unspecified orders." Pl.'s Mot. at 3. However, nowhere in its
briefing on the motion for summary judgment does Plaintiff
suggest that the pharmacy only ever placed "unspecified
orders," and as a result, the Court does not find that this
evidence counsels a different result. Furthermore, Plaintiff's
proffered statement that the wholesaler would have provided Lilly
DES in the years of Plaintiff's exposure is contained in
Waltrip's supplemental affidavit as to the pharmacy's earlier
practices, which, as explained supra, is not properly before
the Court. The bulk of Plaintiff's Motion to Alter or Amend Judgment
objects to the Court's reliance on various exhibits presented by
Defendant as part of its motion for summary judgment indicating
that there was a DES pill made by Marsh-Parker on the market in
the correct dosage, during the time period at issue, that matched
the description given by Plaintiff's mother. See Pl.'s Mot. at
3-8. Plaintiff objects primarily to the Court's reliance on the
"Red Book," a pharmaceutical reference text, and deposition
testimony by Dr. Robert Anderson, originally offered in another
case. Id. The Court finds that Plaintiff's objections to these
exhibits are untimely, and have therefore been waived. Plaintiff
did not move to strike these exhibits during the summary judgment
briefing. As the Court of Appeals for the District of Columbia
Circuit has stated, "Rule 56(e) defects are waived where, as
here, no motion to strike is directed to them below." Humane
Soc'y of the United States v. Babbitt, 46 F.3d 93, 96 n. 5 (D.C.
Cir. 1995) (quoting DeCintio v, Westchester County Med. Ctr.,
821 F.2d 111, 114 (2d Cir. 1987)). Furthermore, the Court reminds
Plaintiff that a motion to alter or amend a judgment "is not
simply an opportunity to reargue facts and theories upon which a
court has already ruled," see New York, 880 F. Supp. at 38, nor
is it "a means to bring the Court theories or arguments that
could have been advanced earlier." W.C. & A.N. Miller Cos.,
173 F.R.D. at 3; see also Kattan, 995 F.2d at 276 ("[T]his Court
has recognized that a losing party may not use a Rule 59 motion
to raise new issues that could have been raised previously.");
Savers Fed. Sav. & Loan Ass'n, 888 F.2d at 1508-09 (finding no
abuse of discretion in denying a Rule 59(e) motion that sought to
raise new theories where facts were known to the movant in
advance of summary judgment).

However, even considering Plaintiff's objections to the Red
Book and the Anderson testimony, the Court shall not alter its
earlier ruling. As the Court found in its original Memorandum Opinion, the Red Book demonstrates that Marsh-Parker
was a DES manufacturer in 1964 and 1965, and that it manufactured
the drug in the relevant dosages.*fn3 Galvin, 03-1797 at
6. Plaintiff raises a bizarre argument that the affidavit
authenticating Defendant's Red Book excerpts is deficient because
the attorney is too young. See Pl.'s Mot. at 4. As Defendant
explains, the Henninger affidavit is offered only to authenticate
the Red Book excerpts, not provide any sort of substantive
analysis. See Def.'s Opp. at 4. The Court agrees that the
affidavit is sufficient for this purpose, and that the Red Book
clearly indicates that Marsh-Parker was a manufacturer of DES
during the relevant time frame.*fn4

Plaintiff's arguments with respect to the Anderson testimony
are similarly unavailing. As Defendant explains, the Anderson
testimony from another case was "offered not to show that Marsh
Parker's DES was actually stocked in the Crowell Ash Drug Store,
but rather to show that Plaintiff cannot eliminate the
possibility based on her mother's unexceptional pill
description." Def.'s Opp. at 4. The Court relied on Anderson's testimony only
for this limited purpose, finding that the testimony indicated
that the Marsh-Parker 25 mg. DES pill matched Mrs. Keller's
description.*fn5 Galvin, 03-1797 at 5. As Defendant points
out, the use of Anderson's testimony from a separate legal
proceeding was appropriate pursuant to Federal Rule of Civil
Procedure 32(a)(3)(B), which permits the use of outside
depositions where the deponent is located more than 100 miles
from the place of the hearing. See Def.'s Opp. at 5 n. 3.

The key reason that Plaintiff's Motion to Alter or Amend
Judgment must fail, however, is that Plaintiff cannot meet her
burden of proof to demonstrate that her injuries were caused by
Lilly DES as opposed to DES manufactured by another company.
Although Plaintiff discusses at length various legal precedents
from a variety of jurisdictions, see Pl.'s Mot. at 6-8, the
Court explained in its original Memorandum Opinion that Kansas
law, applicable in this case, holds that "[c]ausation is an
essential element of a products liability case under Kansas law.
Traditionally, that means that a plaintiff must prove that a
particular defendant's product caused his injuries." Galvin,
03-1797 at 9 (quoting Lyons v. Garlock, 12 F. Supp. 2d 1226,
1228 (D. Kan. 1998)). Plaintiff has failed to show ...

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